Raskally fellows: Are copyright infringers “pirates” and “thieves”?

The skirmish over how we talk when we talk about copyright has a long history.

The habit of relying on metaphors such as "piracy" and "theft" to describe violations of copyright protections can elicit enraged reactions online—“it’s infringement, not theft!” is one common lament. True as that may be, using tough words in the copyright context is a centuries-old practice. Consider the following extracts from a 1704 essay by Daniel Defoe, known for his advocacy for authors' rights long before Robinson Crusoe was published.

Defoe envisioned a law that would "put a Stop to a certain sort of Thieving which is now in full practice in England, and which no Law extends to punish, viz. some Printers and Booksellers printing Copies none of their own." He went on to condemn "pirating Books in smaller Print, and meaner Paper, in order to sell them lower than the first Impression. Thus as soon as a Book is publish'd by the Author, a raskally Fellow buys it, and immediately falls to work upon it, and if it was a Book of a Crown, he will contract it so as to sell it for two Shillings… This is down-right robbing on the High-way…"

Such rhetorical flourishes (gotta love that "raskally Fellow" gibe!) weren't confined to unofficial writings about copyright. In 1774, when England's highest court issued a landmark decision that effectively ended an ongoing slugfest between established bookselling concerns and recently formed rival outfits, one of the judges noted that lower courts often had entered rulings that "not only stopped the sale of the pirated copies, but also obliged the pirate to account for what he had sold."

Neither "piracy" nor "theft" is mentioned in current US copyright statutes (the critics are correct that the law describes only “infringement”.) Nevertheless, modern American judges carry on the tradition of metaphor-infused descriptions of anti-copyright mischief. For instance, Pierre Leval, a prominent New York-based federal judge, gave the following characterization of "piracy" in a 1990 law review article: "Successful fabric designs, fashion accessories, toys, and videos instantly spawn parasitic industries selling cheap copies," he wrote. "These infringers incur no development cost, no advertising expense, and little risk. They free-ride on the copyright owner's publicity, undercut the market, and deprive the copyright owner of the rewards of his creation."

US jurists continue to rely on these terms as more and more copyright disputes involve online conduct. The Washington, DC-based federal judge in a suit against a group of BitTorrent enthusiasts noted last year that the defendants were accused of using the protocol to "unlawfully download a pirated copy of [a California production company's] movie onto their computers." A ruling last year by New York's highest appeals court discussed the national reach of "an injury allegedly inflicted by digital piracy…"

Some judges overseeing copyright cases can't help but (ahem) go a bit overboard with the metaphor-weaving. An Iowa federal judge hearing a recent suit over alleged online porno-pilfering had this to say about the case's defendants: "The modern day pirates at issue in this litigation do not wear tricornes and extract their ill gotten booty at cutlass point, but with a mouse and the internet. Nonetheless, their theft of property is every bit as lucrative as their brethren in the golden age of piracy."

And of course, just as Defoe did more than three hundred years ago, latter-day content creators employ "piracy" and "theft" in publications promoting their own agenda. Here's the definition of "piracy" from the Motion Picture Association of America's online FAQ: "Piracy is theft and includes the unauthorized copying, distribution, performance or other use of copyrighted materials. With regard to film and television, the term primarily relates to downloading, uploading, linking to, or otherwise providing access to unauthorized copies of movies, television shows or other copyrighted content on the Internet …"

Notice that the MPAA definition covers a relatively broad array of misconduct, while the robe-wearing crowd generally uses "piracy" to characterize large-scale, typically profit-motivated violations of copyright. But both approaches reflect a desire to persuade the world, via metaphor, that the conduct being described is inherently harmful. They don’t always have the desired effect—consider, for instance, the name chosen by the creators of The Pirate Bay.

Because there's never been a universal consensus as to what, exactly, "piracy" and "theft" mean when used in the copyright context, different people with different agendas use them to evoke different concepts. George Orwell famously criticized the "dump of worn-out metaphors which have lost all evocative power" after being repeatedly used by people who no longer even know what they originally meant. That's sort of what's going on in today's copyright debate with "piracy" and "theft," but with the twist that the meanings of these metaphors were never particularly clear to begin with.

The result? Otherwise intelligent people sounding... rather confused. Check out these monstrously muddled musings from a recent HuffingtonPost article by Eric Clemons, an information management professor at Wharton:

"Piracy is a complicated issue," he begins, without defining the term. "Is online piracy really theft?" Clemons asks a few lines later, still without offering a definition. "Absolutely. As the laws regarding intellectual property are current [sic] written, most forms of online piracy are theft; examples include as [sic] downloading works of music, entire movies, or software that has been cracked so that it can be used without a key or proof of ownership."

This is fatally imprecise. Read literally, it suggests I can't even download songs off iTunes without becoming a pirate. Read with an eye towards unauthorized downloads, it still raises questions —if I download content in a way that does violate the law, even just once, am I suddenly in the same boat (so to speak) as Megaupload boss Kim Dotcom?

"Other uses of copyrighted content," Clemons continues, "like the use of lead paragraphs from newspaper or magazine stories, may be protected as 'fair use' even [sic] ‘too much fair use’ may they harm [sic] the owners of the intellectual property... But most piracy is theft, and most piracy is illegal."

Hmmm. Clemons's piece may very well be Exhibit A in the case for more precise nomenclature within the copyright debate (and, perhaps, for better proofreading). But before that change can happen, it's important to understand the significance of "piracy" and "theft" in current copyright statutes, where the terms came from, and what users of these metaphors are really trying to say.

"Infringement" by any other name?

Some lawyers and academics specializing in copyright law wouldn't be caught dead using either "piracy" or "theft" in the copyright context. The reason? It's not technically accurate. Contrary to Clemons' depiction, these terms don't appear in existing US statutes on conduct that violates copyright protections—"infringement" is the official term. (Clemons's piece references "infringement" exactly zero times.)

"I don't think there's anything wrong with 'infringement,'" William Patry, a prolific copyright scholar who currently serves as senior copyright counsel at Google, told Ars Technica. Patry argues that metaphors like "piracy," when used in the copyright context, are "political, not descriptive."

In the US, individual pieces of copyright legislation have often had titles containing "piracy" or "theft." And, not surprisingly, the text of the recently controversial, content industry-backed Stop Online Piracy Act featured multiple appearances of both words. But technically speaking, "infringement" is the term that currently carries official significance.

Terry Hart, who runs the popular law blog Copyhype, told me that it's important to remember that "piracy" and "theft" were being used in the copyright context by American judges long before the rise of "infringement" (which was first inserted into US copyright statutes in 1870.) Americans didn't invent this metaphor usage; we inherited—misappropriated?—it from the British. Historians, including Adrian Johns of the University of Chicago, trace the origins of metaphor-tinged copyright-related rhetoric to the explosion of the printing industry roughly half-a-millennium ago. Those who stood to profit from sales of original content needed a way to simultaneously express their frustration at, and dissuade others from engaging in, unauthorized use of their work. What better way than to liken rogue printers and booksellers to criminals?

By 1710, when the British established a formal system for government-regulated copyright protections, authors like Defoe had been throwing around "piracy" and "theft" for a number of years. The metaphor-slinging went intercontinental in the 19th century, when the fledgling US government refused to honor copyrights protecting British books, prompting the Brits to label their former colony "The Barbary Coast." (According to Patry, the Yankee policy constituted a cost-effective means of promoting literacy among a relatively undereducated American populace.)

"Usage [of these metaphors] spikes at moments of tension," Johns told me. Like the moment in the middle of the 20th century, following the rise of unregulated ("pirate") radio transmissions. Currently, we appear to be at the crest of a new spike with origins in 1980s Taper Culture.

K. Matthew Dames, a copyright scholar at Syracuse, remembers noticing an uptick in media coverage of copyright infringement in the mid-70s, when VHS first hit the US market; the film industry voiced fears that the new medium would destroy their business. (Majid Yar, a sociologist at the UK's University of Hull, called my attention to the fact that in 1980s Britain, the British Phonographic Industry waged an anti-taping campaign featuring a Jolly Roger-style logo with a cassette as the skull.)

By the end of the 1980s, you simply weren't cool if you didn't own a Maxell poster; the decade was capped off by Christian Slater's unforgettable portrayal of a cassette-loving teen with his very own pirate radio program.

Dow Jones' Factiva has been compiling print editions of The New York Times and The Wall Street Journal since 1980, which makes it possible to analyze word-use frequency in both papers. From 1980 to 1985, "piracy" (and derivations thereof) and/or "theft" appeared in copyright-related articles at a rate of roughly 20 per year; the 1985-1990 rate was around 30. The advent of digital content saw the use-incidence rate rise to approximately 55 per year from 1990 to 1998 before exploding when the mp3/ripping/file-sharing craze gave birth to Napster. Between 1999 and 2001—Napster's years of existence—the use-incidence rate leapt to nearly 110 annually. It's averaged around 95 in the last decade.